(CN) — The Biden administration told the Fifth Circuit on Wednesday it has no policy against building barriers at the southwest border, refuting Texas’ and Missouri’s claims it is refusing to spend $2.7 billion Congress appropriated for that purpose.
“There will not be another foot of wall constructed in my administration,” then-presidential candidate Joe Biden said in an August 2020 interview.
He followed up with a proclamation on his first day in office, stating former President Donald Trump’s declaration of a national emergency at the southwest border was unwarranted and ending Trump’s diversion of funds from the Defense and Treasury Departments for wall construction.
That proclamation along with the Department of Homeland Security’s announcement in June 2021 it was terminating all border wall projects using the diverted funds and returning the money to Defense and Treasury, and DHS Secretary Alejandro Mayorkas’ statement three months later that the agency would not build walls on the border despite an increase in people entering the country illegally, provoked a lawsuit last October from Texas and Missouri.
The red states cited a 2018 DHS report that concluded “walls have proven extremely effective” in stopping illicit drugs and undocumented immigrants from entering the U.S. They also argued ending border barrier construction will lead to more people entering their states without papers, increasing their education, health care and law enforcement costs.
A case making similar claims against Biden and Mayorkas had been filed months earlier by the Texas General Land Office and its Commissioner George P. Bush. The two lawsuits were consolidated before U.S. District Judge Micaela Alvarez in McAllen.
She stayed proceedings, however, after the U.S. Supreme Court in February agreed to hear Biden’s challenge of lower court orders requiring DHS to restart the Migrant Protection Protocols, a Trump-era policy that sent some immigrants back to Mexico to await resolution of their asylum claims.
Texas and Missouri also filed the lawsuit that forced Biden to reinstate MPP, commonly called Remain in Mexico.
Alvarez, a George W. Bush appointee, said the Supreme Court’s decision, expected in June, will inevitably impact the border wall funding case because the high court will decide if states have standing to challenge federal immigration policies.
Unhappy with the stay, Texas and Missouri appealed to the Fifth Circuit and a three-judge panel heard arguments Wednesday.
Missouri Solicitor General John Sauer said “there’s a reasonable probability” the Supreme Court’s impending ruling will bring a “seismic change” in case law so states can more easily establish grounds to challenge the executive branch’s policies on immigration.
“Let’s assume your predictions about all that are correct,” said U.S. Circuit Judge James Graves. “Because you are kind of predicting what the effect of that decision will be. Is that what you are doing there?”
“Well essentially it is true that we cannot know for sure what the U.S. Supreme Court will do with that particular case,” Sauer replied. “But we do know we’re suffering irreparable consequences on a daily and monthly basis while the case is under consideration.”
Graves, a Barack Obama appointee, questioned how keeping the stay in place for another two months will cause Texas and Missouri irreparable harm.
Sauer pointed to the increased costs they say they will bear from more immigrants entering their state while wall construction is delayed.
U.S. Circuit Judge James Dennis picked up Graves’ line of questioning.
“How long have we been without the wall? If all this terrific damage is going to flow from these two months, how long have we been without the wall?” the Bill Clinton appointee asked Sauer.
Sauer cited a DHS report about the effect of 12 miles of border wall the government constructed in San Diego. “That freed up 150 border agents every 24 hours that were then redeployed to other border sectors to increase border security,” he said.
One of the states’ key contentions is that despite Congress appropriating $1.375 billion in both fiscal years 2020 and 2021 for construction of a border-barrier system, they believe Biden's DHS has adopted a clear policy it will not build another foot of border wall.
Justice Department attorney Thomas Byron urged the panel to dismiss the case. “Federal courts are the wrong place for the kind of political disagreements the plaintiffs seek to bring,” he said.
Rejecting the states’ claim DHS has a policy of no more wall construction, Byron said DHS is planning to build barriers near Laredo, Texas with the 2020 funds.
But he said first the federal government has to analyze the project’s impacts as required by the National Environmental Policy Act, acquire the land through its power of eminent domain — a common hurdle for Texas border land because most of it is privately owned — and consult with stakeholders on the design and construction of the wall.
Trump expedited wall construction by waiving dozens of environmental, wildlife and archaeological site protection laws.
But Biden has declined to waive these measures.
“The plaintiffs contend that barrier-system construction can only mean swinging hammers, pouring concrete and installing bollards,” Byron said. Bollards are the tall posts the government uses to construct border fencing.
“But previous appropriations for these projects were used for land acquisition, surveys, design, road construction, erosion control, drainage and all the many steps we’ve identified need to be undertaken here as well,” Byron continued. “There’s nothing unusual about this.”
In rebuttal, Sauer stressed time is of the essence as the appropriations will expire in September 2024 and September 2025. He added a DHS official stated in a declaration the environmental analysis for the Laredo project alone will take 12 to 16 months.
“DHS is like a basketball team that’s passing the ball around … while the clock winds down towards zero,” he said.
He urged the panel to remand the case to Judge Alvarez with instructions to enter a preliminary injunction requiring DHS to implement a policy in favor of wall building.
U.S. Circuit Judge Patrick Higginbotham, a Ronald Reagan, appointee filled out the panel. The judges did not say when they would issue a ruling.
Though the Biden administration is taking its time with wall construction, Texas Governor Greg Abbott is moving quickly to install barriers on state land and private property with the permission of landowners.
A Republican running for a third term, Abbott announced last summer Texas will use $750 million of more than $2 billion the state Legislature has allocated for border security on building border barriers.
Abbott is also crowdfunding border wall funding donations and had received more than $55 million as of April 28.
Texas has erected more than 37 miles of wall, fencing and concertina wire in the border counties Starr, Val Verde, Maverick, Zapata and Hidalgo, Abbott spokeswoman Renae Eze said in an email.
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